In recent times we have had a lot of debates
about fundamental right of speech and expression. One classic and most recent
example, that comes to every one’s mind is the ‘Kiss of Love Campaign’ or
‘Kiss of Love Protest’ so to say,
that seems to be rapidly spreading like a fashion trend across metro cities.
But the big question is, on whose side the law stands, in this fight between ‘So called preachers of freedom of expression’ and ‘Self proclaimed protectors of morality’?
To understand the issue we will have to go through a few important concepts prescribed in Indian Constitution and the provisions prescribed in the Indian Penal Code. We would also have to analyze as to how the Apex Court has viewed the issue in recent times to get a hang of how the subject has evolved over the years.
The Constitution of India in Article 19(1)(a) guarantees ‘Freedom of Speech and Expression’ to every citizen of India. Which, basically means that every citizen of India has a fundamental right to freely express himself/herself by word of mouth, writing, printing, picture of in any other manner?
In the context of the aforementioned fundamental right anyone and everyone, who is a citizen of India, is free to express himself/herself in the way he/she feels most suitable for such expression.
But the Article 19(1)(a) is not without caveats and the right to speech and expression is not an absolute right, in as much as, Article 19(2) provides for conditions under which the said right may be restricted through operation of an existing law and/or state’s right to create a new law. One among the prescribed conditions, which is most important while dealing with the subject is ‘in the interest of decency or morality’.
This brings us to the provisions of Section 294 of the Indian Penal Code (IPC), which inter alia (among other things) prescribe imprisonment for a period of three months or fine or both to the person ‘who to the annoyance of others does any obscene act in public place.
It is interesting to note that no definition
of the term ‘obscene’ has been prescribed for this particular section and a
reference to the same can be drawn from the clarification given in Section 292
of IPC for any publication to be obscene ‘if
it is lascivious or appeals to the prurient interest or if its effect, or
(where it comprises two or more distinct items) the effect of any one of its
items, is, if taken as a whole, such as to tend to deprave and corrupt
person, who are likely, having regard to all relevant circumstances, to
read, see or hear the matter contained or embodied in it.’
Since there is no specific definition of the
term ‘obscene’ prescribed, the test applied by the Courts over the years was
dependent on the portion underlined in the above para. The said test was
popularly known as ‘Hicklin Test’
in the judicial parlance, which was derived from the famous English case of Regina
Vs. Hicklin. The judgment was an interpretation rendered while
interpreting ‘Obscene Publication Act,
1857’.
One would however, feel that the standards of
morality in a society are constantly evolving and the test, whether something
and/or some act has a potential to deprave and corrupt someone, would have to
be seen through the prevailing social acceptance standards.
The Hon’ble Supreme Court of India recently
in the matter of Aveek Sarkar and Another Vs. State of West Bengal and Others
has laid down landmark judgment and has given several revolutionary observations
such as:
while judging as to whether a particular photograph, an article
or book is obscene, regard must be had to the contemporary mores and national
standards and not the standard of a group
of susceptible or sensitive persons’
We are also of the view that Hicklin test is not the correct test to
be applied to determine "what is obscenity". Section 292 of
the Indian Penal Code, of
course, uses the
expression 'lascivious and
prurient interests' or its effect.
Later, it has also been indicated
in the said Section of the applicability of the
effect and the necessity of taking the items
as a whole and on that foundation where
such items would
tend to deprave and corrupt
persons who are likely,
having regard to
all the relevant circumstances,
to read, see or
hear the matter
contained or embodied in it. We have, therefore, to apply the
"community standard test" rather than "Hicklin test" to determine
what is "obscenity". A bare reading of Sub-section (1) of Section
292 , makes clear that a picture or article shall be deemed to be obscene (i)
if it
is lascivious; (ii)
it appeals to the prurient interest, and (iii) it tends to deprave and
corrupt persons who are likely to read, see or
hear the matter,
alleged to be obscene.
Once the matter is found to be obscene, the question may arise as to
whether the impugned matter falls within any of the exceptions contained in
Section. A picture of a nude/semi-nude
woman, as such, cannot per se be called obscene unless it has the tendency to
arouse feeling or revealing an overt sexual desire. The picture should be suggestive of deprave
mind and designed to excite sexual passion in persons who are likely to see it,
which will depend on the particular posture and the background in which the nude/semi-nude
woman is depicted. Only those
sex-related materials which have a tendency of "exciting lustful
thoughts" can be held to be obscene, but the obscenity has to be judged
from the point of view of an average person, by applying contemporary community
standards.
The judgment goes on to analyze various
judgments passed by the Supreme Court and comes to a conclusion that no
specific definition of the term ‘Obscene’ can be given as it has to be seen in
the context of the entire issue and by application of standards which are
contemporary and not archaic.
The Hon’ble Supreme Court has, however, also
discussed the case of Ranjit D. Udeshi, where it suggests as follows:
The test must obviously be of a general character but it must
admit of a just application from case to case by indicating a line of
demarcation not necessarily sharp but sufficiently distinct to distinguish
between that which is obscene and that which is not.
It has thus stressed upon the fact that the definition of term ‘obscene’
cannot be completely a generic one but the same needs to be decided on case to
case basis.
Taking a cue from the aforementioned discussion,
‘can kissing in public be treated as
obscene’ or can it be termed as ‘just
an expression of love and affection and not amounting to breach of moral
standards and hence purely within the fundamental rights enshrined in the
Constitution’?
In my opinion the same would again differ on
case to case basis and every expression will have to be tested on the basis of facts
and circumstances of each case.
While I firmly believe, that there is no space for
any hard line response to any public expression of love and affection and
random registration of cases under IPC. I also feel that widespread mindless protests,
demonstrations and campaigns are starting to take a form, where it may have
some elements of creating annoyance to
others and a tinge of obscenity.
